Bloomfield v Minister for Immigration, Citizenship and Multicultural Affairs

1. The originating application be dismissed pursuant to r 31.24(5) of the Federal Court Rules 2011 (Cth).
2. The applicant pay the second respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NICHOLAS J: 1 The applicant is a 59 year old citizen of Tonga who first arrived in Australia in 1984 at the age of 20. 2 The applicant is self-represented. On 12 July 2023 Registrar Haag issued a referral certificate in respect of the applicant pursuant to r 4.12 of the Federal Court Rules 2011 (Cth) ("FCR"). Counsel who accepted that referral was granted permission by Registrar McCormick to cease providing legal assistance to the applicant pursuant to r 4.16 of the FCR on 19 October 2023. 3 On 17 December 2019 a Delegate of the Minister cancelled the applicant's Resident Return visa under s 501(2) of the Migration Act 1958 (Cth) ("the Act"). The applicant was notified of that decision by letter dated 18 December 2019. On 3 January 2020 the applicant applied to the Administrative Appeals Tribunal for review of the Delegate's decision. He attended a hearing before the Tribunal on 10 and 11 March 2020. On 24 March 2020 the Tribunal affirmed the Delegate's decision. 4 On 7 May 2020 the applicant filed in the Federal Court of Australia an application for an extension of time in which to seek judicial review of the Tribunal's decision. On 15 May 2020 he filed a notice of discontinuance. 5 On 26 June 2023 the applicant filed an application for review of a migration decision. The first respondent ("the Commonwealth") was removed as a party by orders made on 23 August 2023. The second named respondent (now the sole respondent) is the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister"). 6 The form of the originating application follows Form 70, but does not specify either the decision sought to be reviewed or the grounds relied on by the applicant. An affidavit made by the applicant filed in support of the originating application annexes (inter alia) a copy of the Delegate's decision, but not the Tribunal's decision. 7 On 14 July 2023 the Minister filed a notice of objection to competency. The grounds relied on by the Minister are as follows: (a) on 26 June 2023, the applicant filed an application for review of a migration decision under s 476A of the Act, seeking to review a decision of a Delegate of the Minister dated 17 December 2019 to cancel the applicant's visa pursuant to s 501(2) of the Act; (b) the applicant has not sought an extension of time and has not pleaded any grounds of application; (c) in any event, the Court has no jurisdiction to review the decision of the Delegate, as it is not a migration decision specified in s 476A(1) of the Act as being in the Court's original jurisdiction. The notice was filed pursuant to r 31.24(1) of the FCR. Subrule (2) of that rule provides that the applicant carries the burden of establishing the competency of the application. 8 Section 39B of the Judiciary Act 1903 (Cth) relevantly provides that: (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: ... (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter. … 9 This Court's jurisdiction in relation to a "migration decision" is limited by s 476A of the Act. 10 Section 476A of the Act provides as follows: Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) both: (i) the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and (ii) the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. … (2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. 11 In written submissions filed on 11 August 2023 the Minister submitted that none of the four subparas of s 476A(1) apply. That is to say: the proceeding has not been transferred to this Court by the Federal Circuit and Family Court of Australia (Division 2); the decision the applicant seeks to have reviewed is not a decision of the Administrative Appeals Tribunal; the decision the applicant seeks to have reviewed was not made personally by the Minister but by his Delegate; and this Court does not have jurisdiction in relation to the decision under either s 44(3) or s 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth). 12 It is not entirely clear whether the applicant is seeking to have this Court review the decision of the Delegate or the decision of the Tribunal made on 24 March 2020. However, the affidavit evidence submitted by the applicant in support of the originating application (annexing a copy of the Delegate's decision but not the Tribunal's decision) suggests that it is the Delegate's decision that the applicant seeks to have reviewed. It is also relevant to note that the applicant's prior attempt to challenge the Tribunal's decision was discontinued. These matters suggest that the applicant, in bringing this proceeding, is seeking to challenge the decision of the Delegate rather than that of the Tribunal. 13 The application for an extension of time in which to seek judicial review of the Tribunal's decision filed by the applicant on 7 May 2020 was discontinued on 15 May 2020. It is not suggested by the Minister that the filing of the discontinuance would preclude the making of a fresh application for an extension of time in which to seek judicial review of the Tribunal's decision. However, any further application for an extension of time would be more than 3 years after the Tribunal's decision was made. That is a lengthy delay, which has not been explained by the applicant. 14 In support of his submissions the Minister relied on two decisions of this Court: Ninsiri v Minister for Home Affairs [2019] FCA 363 (Gleeson J) and Moss v Minister for Immigration and Border Protection [2017] FCA 1243 (Markovic J). There is no reason to doubt the correctness of either of those decisions. In both cases there was a finding that the applicant sought judicial review of a decision of a Delegate in respect of which the Court lacked jurisdiction. 15 In Moss at [5], Markovic J referred to correspondence that the solicitors for the Minister had with the applicant, in which they advised the applicant that the Federal Court had no power to review the Delegate's decision, but that it could review the Tribunal's decision. The letter continued: … We understand, that it is your intention to seek review of the Tribunal's decision. If so, you will need to amend your Application by 28 September 2017 (as provided by order 1 of the orders made by the Court on 31 August 2017) to seek review of the Tribunal's decision. You will also need to attach a copy of the Tribunal's decision to your amended application and add the Administrative Appeals Tribunal as the second respondent to your application. If no amended application is filed and served by you, we are instructed that the Respondent will submit, at the hearing of the Application on 20 October 2017, that the Federal Court has no jurisdiction to consider your Application. 16 There is no evidence of the Minister having sent any similar letter to the applicant in this case. That is not intended as a criticism of the Minister. The Minister's written submissions in this matter were filed approximately 10 weeks before the applicant's pro bono counsel withdrew. 17 I will not speculate about any legal advice given to the applicant by his pro bono counsel. What is significant is that, since the filing of the notice of objection to competency and the Minister's written submissions, the applicant has taken no steps to amend his originating application or to make a further application for an extension of time to review the Tribunal's decision. There is nothing before the Court to suggest that any further application for an extension of time to review the Tribunal's decision that may be filed by the applicant would have any prospect of success. 18 It is for the applicant to establish that the Court has jurisdiction to review a migration decision under s 476A of the Act: see r 31.24(2) of the FCR. The applicant did not address the issue of the Court's jurisdiction in any written submissions (none were filed) or in some brief oral submissions that he made. The latter were confined to a discussion of his personal circumstances and the hardship that his return to Tonga would impose upon him and his family. Those submissions do not have any bearing on the resolution of the jurisdictional issue raised by the Minister. 19 The applicant has not established that he is seeking to challenge a migration decision which may be reviewed by this Court pursuant to s 476A of the Act. In the circumstances, the Minister's notice of objection to competency should be upheld. The originating application should therefore be dismissed pursuant to r 31.24(5). The applicant must pay the Minister's costs of the proceeding. 20 Orders accordingly. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas.